Design changes will land in 2012 product lineup, Samsung hopes they will prevent future suits

[This article contains mild analysis and editorial commentary. The opinions are those of the author. -Ed.]

In the grand scheme of things, Apple, Inc.'s (AAPL) legal war [1][2][3][4] [5][6][7][8] against the world's largest phonemaker, Samsung Electronics Comp., Ltd. (SEO 005930), may prove more of a passing annoyance than a real threat. The legal harassment has appeared to slightly stifle Samsung's tablet and smart phone sales in the short term, after Apple scored preliminary injunction wins in Australia and Germany. But in the long term Samsung is already making the adjustments it needs to make its products "lawsuit-proof".

I. Making Adjustments

Samsung's Won-Pyo Hong, executive VP of product strategy at the South Korean electronics giant, took the stage at AsiaD yesterday and the talk quickly turned to the legal dispute. When asked by Walt Mossberg whether his company was redesigning its hardware and software to avoid litigation, Mr. Hong responded, "The short answer is yes... Our legal department is taking all possible options. As the head of a product portfolio, we have multiple different designs — hardware and UX — so we can immediately provide other solutions."

It was widely known that Samsung tweaked the Android Gallery app, removing a "bounce-back" GUI animation, which Apple appparently patented. The modifications allowed the Samsung Galaxy S smartphone to escape a sales ban in the Netherlands.

However, Mr. Hong's statement offer the first hint that Samsung may be making a concerted effort in terms of hardware to further distance its product from Apple's.

II. The Technology IP -- Easy to Escape

Unlike Microsoft Corp. (MSFT), whom Samsung was forced to enter an expensive license agreement with, Apple's asserted intellectual property, in our experienced analysis, largely falls under the category of obvious and superfluous. This is likely why Samsung appears to be content to simply remove it from its mobile devices. For example, the only technology IP being applied in many Apple's international cases against Samsung is the aforementioned bounceback animation, which you can see below:

Samsung/Google's "slavish" infringement [Gallery App]

Samsung/Google's "slavish" infringement [Browser App]

If that's the only thing preventing Apple from losing more sales to Samsung, Apple has far bigger issues to worry about.

While its fair to debate the merits of a company copyrighting what amounts to a obvious animation, which a skilled expert could implement within an hour, the good news is that Samsung should be able to modify its products sufficienty to escape Apple's legal wrath.

Of course Apple does have some seemingly heavier-hitting technology patents, like its patents covering multi-touch gestures and multi-touch display manufacturing processes, but it's seemed reluctant use them, likely out of fear of getting them invalidated in the face of the large amount of prior art.

III. Design Poses a Bigger Problem

The more onerous issue is that of the design.

Mr. Hong claimed in the interview that the Galaxy Nexus, which featured a curved face, was not given its unusual design to make it look less like the iPhone.

Apple has asserted sweeping rights to rectangular, minimalist (our terminology, Apple's lawyers use a more verbose description to this effect) tablet and smartphone designs. It believes that its rights are broad enough to claim Samsung's devices are in infringement of its design patents. Thus far only one court (Germany) has upheld those claims.

Below I give a brief comparison of the substantial differences between Apple and Samsung's products:

First we look at the Galaxy S, which Apple claims "slavishly" copied the iPhone. Specifically note that the folowing features are different:

Button count and placement

Connectors

Side profile of phone (note the lip on Samsung's design)

Size of screen and general phone size.

Logo/name placement on body

Similar differences can be found between the Samsung Galaxy Tab 10.1 and the iPad, an early version of which is covered in the final patent. We've detail these differences between the patent, the actual iPad, and the Galaxy Tab 10. below, which include:

Only Galaxy Tab 10.1 has a camera (compared to the original iPad).

The thickness in the design patent doesn't match the thickness of the iPad or Galaxy Tab (please measure this in an imaging software, in pixels, if you don't believe us).

Bezel sizes don't match between any of the three designs.

Connectors and buttons on the side are different.

Screen sizes and aspect ratios are different.

Only the iPad has a home button.

All tablets are clearly and unambiguously branded.

The back color doesn't match.

Yet despite all these differences Samsung's commentary indicates that it may be concerned that Apple may be able to actually win with its broad design claims, claims which are based on similarities in shape (thin rectangles) and color scheme. This conclusion is surprising, to me at least, but it is what it is.

It seems a somewhat dangerous precedent to cave to Apple's broad design ownership claims, as it may become a case of "if you give them an inch, they'll want a mile." But based on Mr. Hong's comments, Samsung indeed appears to be determined to make a bid to placate Apple on the design front, as well as the technology front.

Mr. Hong claims thas the changes in hardware and software will come with new Samsung tablets/smartphones and TouchWiz 5.0, which are set for 2012 launch(es).

We'd imagine that Samsung will have to work substantially to make its products look less iPad/iPhone-like than they already are. That said, such efforts may pay of merits in unusual, distinctive designs like the Galaxy Nexus.

Apple showed the masses what computers could be, but made the mistake of being overly controlling on how, when, where and especially how much they could be sold for...and the clones showed up.

Apple should have learned that once they open the door on a game changing design, the competition and their customers will kick open the door. They should have been ready to sell the iPhone at every carrier at the same time...none of this carrier exclusivity stuff.

I know they were trapped because most of the carriers were not interested in Apple's demands to get the iPhone, but this is the fallout. Maybe a little less greedy would have meant complete ownership of the market.

Whenever you massively change or create a market, you better be able to capitalize or your competitors will do it for you... and they won't even have to say thank you.

Actually, I think 1982 is a better example. IBM made the PC and showed the (business) world how useful a cheap, affordable computer could be. Compaq reverse-engineered the BIOS, basically copied its functionality 100%, to make the world's first PC-compatible.

IBM sued on the grounds that the BIOS was programmed to only work if you copied the words "Copyright IBM" contained within. Compaq said they reverse-engineered the product in a clean room. Basically one team disassembled the entire BIOS and wrote down everything it did when given every possible input. Another team took those specs and made their own BIOS which did the exact same thing. Right down to requiring "Copyright IBM". Compaq won, and the PC-compatible industry was born.

The people cheerleading Apple right now are basically saying things would have been better if PC-compatibles hadn't existed, and only IBM had been allowed to make PCs.

No. The people cheerleading Apple right now are basically saying things would have been better if Samsung hadn't copied Apple, not that copying things correctly is wrong.

Your very example demonstrates legal copying.

I can give you a second example that demonstrates illegal copying: Psystar.Modified OS X -> Violates copyrightInstall from a server -> Violates copyrightDidn't do any reverse engineering -> Legal solution

Samsung didn't have to ape the icons, the appearance, or the UX at all. Those were choices Samsung made.